S.P. SONKAR Vs. SMT. USHA SINGH

JUDGEMENT

(1.) The above revision has been filed under section 25 of the Provincial Small Cause Courts Act and is directed against the order dated 12.1.2010 passed in Original Suit No. 42 of 2006 whereby the Court below has struck off defence of the defendant tenant who is applicant herein under Order XV, Rule 5, C.P.C. The facts of the case may be noticed in brief. Smt. Usha Singh instituted the afore stated Suit No. 42 of 2006 against the present applicant for recovery of arrears of rent, ejectment and damages in respect of house No. A-126, Mehdauri Colony, Awas Vikas Colony, Teliyarganj, Allahabad, on the allegations that the defendant applicant was tenant on monthly rent of Rs. 4,000/- and has defaulted in payment of rent. The rent being more than Rs. 2,000/-, the building in question is exempted from the operation of U.P. Act No. 13 of 1972. The tenancy has been determined by means of a notice under section 106 of Transfer of Property Act. The said suit is still pending. An application under Order XV, Rule 5, C.P.C., giving rise to the present revision, was filed on 6.11.2008, on the pleas inter alia that the defendant tenant has failed to deposit the rent, as required under Order XV, Rule 5, C.P.C. In reply thereof, the defendant tenant filed a representation dated 21.11.2009, stating that he could not pay the rent for the period November, 2008 to October, 2009 due to financial crisis and illness of the children in the family. It was further stated that he has given a sum of Rs. 25,528/- as advance to the plaintiff landlady for her personal use which shows his bona fide. Through the said representation/application, the defendant tenant expressed his desire and sought permission to deposit a sum of Rs. 23,000/- including tax and 9% interest through tender.

(2.) The Court below, by the order under revision, allowed the application filed by the plaintiff landlady opposite party and ordered for striking off defence, on the finding that admittedly the defendant tenant has not deposited the rent for the period November, 2008 to October, 2009. It was further found that the plea as set out by the defendant tenant in reply to the said application is untenable.

(3.) Sri Arvind Srivastava, learned Counsel for the applicant tenant, in support of the present revision, submits that the order, under revision, is bad as the Court below has failed to consider the material on record. Elaborating the arguments, it was submitted that the Court below has not considered the plea regarding the financial difficulty and illness of children raised by the applicant in reply. Secondly, the order striking off defence should not have been passed in the present case and discretion should have been exercised in favour of the defendant tenant in much as the defendant tenant has paid the rent in advance to the landlady from time to time as is evident from various cheques issued by the tenant. The learned Counsel for the defendant tenant submits that the property in dispute was let out to the defendant tenant under rent agreement dated 4.9.2002 for a period of 11 months on monthly rent of Rs. 3,465/-. After expiry of the aforesaid period, the defendant tenant vacated major portion and rate of rent was reduced to Rs. 1,800/- per month. The defendant tenant used to pay the rent in advance.